Responsibility of the Transferee and the Transferor Employer in the Transfer of Workplace
The European Union Directive No. 2001/23 regulates the legal consequences of termination due to the transfer in the event of the transfer of a workplace in terms of labor receivables arising before the transfer. The provision regulating the continuation of the existing employment contracts of the employees with the new employer in the event of the transfer of the workplace or a part of it, which is based on this Directive, is included in Article 6 of the Labor Law No. 4857. The relevant regulations impose joint and several liability on the transferor and transferee employers, which in practice leads to conflicts between employers.
According to Article 2 of the Labor Law No. 4857; a real person who works based on an employment contract is called an employee, a real or legal person or unincorporated institutions and organizations employing employees is called an employer, and a unit where material and non-material elements and employees are organized together by the employer to produce goods or services is called a workplace. Pursuant to the provisions of the Law on the transfer of the workplace, in the event of the transfer of the workplace, the joint and several liability of the transferor and transferee employers arises, and this article discusses the joint and several liability.
First of all, it would be appropriate to mention the legal nature of the transfer of the workplace. The Law states that the transfer of a workplace shall occur as a result of a legal transaction. The transactions regarding the transfer are not explicitly stated in the provision and a general expression is used regarding the transfer. Pursuant to Article 6 of the Law No. 4857 "When the workplace or a part of the workplace is transferred to another person based on a legal transaction, the employment contracts existing in the workplace or a part of it on the date of transfer shall pass to the transferee together with all rights and obligations." When the phrase "legal transaction" is analyzed, we can say that the transfer of the workplace can be made either by direct transfer of ownership or by a lease agreement. As a matter of fact, if the transfer of the workplace is made through a lease agreement, the termination of the lease agreement may also be considered as a transfer of the workplace, since the transferee employer will again acquire the title of employer in the employment relationship at the end of the agreement. The transfer of the workplace may be made on the basis of legal transactions such as sale, donation, tramping, leasing, structural changes in the form of merger or division in commercial companies. However, it is not possible to transfer the workplace to the heirs as a result of the death of the employer. In the preamble of Article 6 of the Labor Law, it is stated that "The Article covers all cases where the workplace or a part of it is transferred to another employer "based on a legal transaction", except for the transfer of the workplace to the heirs according to the provisions of inheritance upon the death of the real person employer and its consequences accordingly. However, the differences in the results according to the nature of the transaction are discussed separately in the article and exceptions are shown."
In the transfer of the workplace, in order for the employment contract to continue with the transferee employer, the transfer of the workplace must be made in a way that can be legally concluded. If there is a transfer of the transferred section or the entire workplace, the workplace must maintain its economic unity after the transfer. If the transfer does not involve the transfer of economic unity, the transfer of the workplace or a part of the workplace cannot be mentioned. The decisions of the Court of Cassation and the Court of Justice of the European Union have adopted the same principle and stated that the transfer of the workplace will make sense if the economic integrity is preserved.
In the decisions of the European Court of Justice, the term "transfer by legal act" is broadly evaluated and a written, oral or implied agreement is deemed sufficient. Again, in the practice of the member states, it is accepted that the transfer of the workplace may be possible even if the transferor employer does not know about it. In Switzerland, which is not a member of the European Union, but has a similar provision, the Federal Court concluded that it is not necessary to have a direct legal transaction between the transferor and the transferee. (See Yenisey, K. Doğan: The Concepts of Workplace and Division of Workplace within the Framework of Transfer of Workplace, Kadir Has Uni. Triple Labor Relations in Labor Law, p. 135)
Although the transfer of workplace is generally regulated in Article 6 of the Labor Law, there is a provision in Article 178 of the Turkish Commercial Code No. 6102 that deals with the status of labor relations in the event of structural changes in companies. There are some differences between the two provisions on issues such as the right of objection, guarantee obligation and joint and several liability. However, when we look at the justification of the Turkish Commercial Code and the will of the legislator, it is concluded in the TGNA Justice Commission Report that Article 178 of the Turkish Commercial Code is a special regulation compared to Article 6 of the Labor Law in cases of merger, division and change of type, that it is a regulation that is more favorable to the employee and has a strong social aspect, therefore it will be applied primarily and that the provisions of Article 6 of the Labor Law will only be used to fill the gaps.
Article 178 of the Turkish Commercial Code No. 6102 reads as follows: “(1) In a full or partial spin-off, the service contracts concluded with the employees shall pass to the transferee with all rights and obligations arising out of this contract until the date of transfer, unless the employee objects. (2) If the employee objects, the service contract shall expire at the end of the statutory dismissal period; the transferee and the employee shall be obliged to fulfill the contract until that date. (3) The former employer and the transferee are jointly and severally liable for the employee's receivables due before the division and for the receivables due during the period until the date when the service contract is normally terminated or terminated due to the employee's objection. (4) Unless otherwise agreed or unless it is understood from the necessity of the case, the employer may not transfer the rights arising from the service contract to a third party. (5) Workers may request the guarantee of their receivables that are due and will become due as stipulated in the first paragraph. (6) The shareholders of the transferor company who were liable for the debts of the company before the spin-off shall continue to be jointly and severally liable for the debts arising from the service contract and due until the day of transfer, and for the debts that would have become due if the service contract had been terminated normally or that would have arisen until the moment the service contract was terminated due to the worker's objection.". When the differences with the Labor Law are examined, it is seen that there are differences such as the right of objection granted to the employee and the right to request the guarantee of the employee's receivables that are due and will be due until the day of transfer. For this reason, in cases of merger, division and change of type, the above-mentioned provision shall be applied in priority.
In addition, according to Article 202 of the Turkish Code of Obligations No. 6098 on the acquisition of assets or business, the third party assumes the obligation upon the acquisition of the business together with its assets and liabilities. However, for the onset of the transferee employer's liability, it is necessary to notify the creditors or announce in the newspapers that the business has been taken over. The liability of the transferor employer is two years together with the transferee employer. This period starts from the date of notification or announcement for due debts and from the due date for overdue debts. The 2-year period of joint and several liability for the transferor and transferee employers is regulated as a period of forfeiture, not a statute of limitations.
When we go back to the Labor Law, we see that according to Article 6, Paragraph 3, the responsibility of the transferor employer for the receivables due before the date of transfer is two years from the date of transfer. In this case, the employee can apply to the transferor employer for labor receivables within a period of two years from the date of transfer. This period is the application period, and the wages claimed within two years are subject to a five-year statute of limitations from the date they become due. In the decision of the 9th Civil Chamber of the Court of Cassation dated 09.03.2020 and numbered 2016/21959 E - 2020/3850 K, this issue is stated as follows: "We have explained above that the transferor employer is not liable for the receivables arising after the transfer, but only for severance pay. It is important when the transferor employer's liability for severance pay begins and how many years the statute of limitations is subject to. Since the severance pay becomes due and payable upon the termination of the employment contract, the two-year liability of the transferor employer will not be applicable. This is because the two-year liability is the period for claiming due receivables from the date of transfer. Since severance pay is subject to a five-year statute of limitations from the date of termination, the employee will be able to apply to the transferor employer without being bound by the two-year period. " We can state that the two-year period is a forfeiture period in terms of the right to apply, and since there is no provision regarding the period during which the transferee employer is held responsible for the receivables before the transfer, we can state that the five-year statute of limitations in labor receivables will be applied regarding the receivables.
When we evaluate the scope of liability, the liability of the
transferor employer under the Labor Law is a limited liability. Article 6 of
the Law reads as follows: “The transferee employer is obliged to act
according to the date the employee started to work for the transferor employer
in the rights based on the length of service of the employee. In the event of a
transfer in accordance with the above provisions, the transferor and transferee
employers shall be jointly liable for the debts arising before the transfer and
due for payment on the date of transfer. However, the liability of the
transferor employer for these obligations is limited to two years from the date
of transfer.”
According to the provision, the employee, whose employment contract is
transferred to the transferee employer, may apply to both the transferor and
the transferee employer for his rights such as wages, overtime wages, etc. that
arose and are due before the transfer of the workplace. However, the right to
apply to the transferor is limited to 2 years from the date of the transfer and
this period is a forfeiture period. As stated in the above-mentioned Court of
Cassation decision, this grace period is related to the right to apply. There
is no stoppage or interruption of this period, and in case of dispute, it will
have to be taken into consideration by the judge ex officio.
The liability of employers varies in terms of types of labor receivables. In terms of severance pay, the responsibility of the employer who transfers the workplace is limited to the period of employment and the wages received by the employee at the time of the transfer. However, in the decision of the 22nd Civil Chamber of the Court of Cassation dated 23.02.2017 and numbered 2017/8931 E - 2017/3734 K, it is stated that the responsibility of the transferor employer for severance pay is not subject to time limitation. The relevant decision states that “Since the second paragraph of Article 14 of the repealed Law No. 1475 does not stipulate a period of time for the responsibility of the transferor employer, the two-year time limitation for the transferor employer mentioned in Article 6 of the Law No. 4857 shall not be in question in terms of severance pay. Therefore, severance pay should be calculated for the entire period before and after the transfer of the workplace, but the liability of the transferor employer or employers should be limited to their own period and the wage on the date of transfer.”
Pursuant to Article 6 of the Law No. 4857, the transferor employer and the transferee employer are jointly and severally liable for the wages, overtime work, week holiday work, holiday and general holiday wages arising until the date of transfer of the workplace, and this period is limited to two years from the date of transfer for the transferor. It is clear that the transferor employer is not responsible for the said labor receivables arising from the work after the date of transfer. In this respect, the transferee employer will be solely responsible for the labor receivables such as wages, overtime work, week holiday work, holiday and general holiday wages for the period after the transfer.
Conclusion
Pursuant to Article 6 of the Labor Law No. 4857, in the event of the transfer of the workplace, the transferee and the transferor employer are jointly and severally liable for two years in terms of labor receivables, and the provisions to be applied according to the types of receivables and the form of transfer vary. Our article explains the joint and several liability arising in the event of the transfer of the workplace.
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